The Perfect and the Good on Network Neutrality

Here’s the best thought piece I’ve seen on FCC Chair Tom Wheeler’s proposal on net neutrality. It comes from two leading Internet policy experts: Phil Weiser, dean of the University of Colorado and executive director of the Silicon Flatirons Center for Law, and Kevin Werbach, Wharton Professor at the University of Pennsylvania.  Weiser served in the Obama Administration’s White House and Department of Justice; Werbach led the Obama Administration’s FCC Transition Team and wrote the first FCC policy paper on Internet interconnection.

First, a word of caution. Wheeler’s proposal is not public, so all the furor in the past week is based on leaked reports,  and Wheeler’s one published blog. Based on these reports, Weiser and Werbach make a compelling case in support of the Wheeler proposed framework to protect an open Internet.

First, they acknowledge the challenges Wheeler faces in writing open Internet rules that will pass muster with the courts, which twice have rejected the FCC’s rules. “Wheeler’s approach has something going for it,” they write. “It might actually stick.” This would be a significant accomplishment, they say: making a form of network neutrality the law of the land.

And how would Wheeler protect net neutrality? He would establish FCC oversight over agreements between broadband and content providers. The FCC would strengthen ISP transparency obligations, prohibit ISPs from blocking or degrading legal Internet content and websites, and ban ISPs from arbitrarily favoring certain applications or their own content.

The most controversial part of Wheeler’s proposal is the part that would allow paid quality of service agreements between ISPs and content providers if, and only if, they are “commercially reasonable.” The FCC would review these agreements on a case by case basis. Weiser and Werbach acknowledge concerns about this proposal, but they also point out that the FCC could define “commercially reasonable” in ways to protect innovation and equitable access on the Internet. For example, they note that the FCC could include a “condition that any paid prioritization offerings are only reasonable when the broadband provider offers a sufficiently robust level of non-prioritized broadband.”

Moreover, the authors remind us that there are many existing commercially reasonable examples of “paid prioritization” that are not discrimination. “One wouldn’t say that Fed Ex discriminates because it offers the choice of one-day and two-day package delivery,” they write. In fact, today’s telephone regulations allow different levels of service (“paid prioritization”) as long as they are available to everyone on an equal basis.

Weiser and Werbach remind us that there are already many forms of differentiation of traffic on the Internet. There are thousands of interconnection agreements, caching of content, engineering protocols. Sure, content providers like Netflix and Google would like to lower their costs of using the network and network providers would like to charge more. But as the authors note: “that’s the way business negotiations work.”

The authors acknowledge that there are downsides and risks in Wheeler’s proposal. But the key to protecting investment and innovation on the Internet, they write, is how the rules are enforced. “The dirty little secret is that enforcement is a key challenge for every variant of network neutrality…the rules get all the attention, but the real question is what the FCC does with them.”

Take time to read Weiser and Werbach’s thought piece. It separates rhetoric from reality, recognizes that there are risks in any net neutrality rule, and effectively argues that Wheeler’s framework may well be the best chance we have to give the FCC the authority to protect openness, innovation, and investment on the Internet.

Setting the Record Straight on the RCC's Open Internet Rules (Wheeler FCC Blog, Apr. 24, 2014)

The Perfect and the Good on Network Neutrality (Huffington Post, Apr. 27, 2014)